The America Where They Do Prosecute Torture

Last week, 15 men entered a courthouse facing, amongst other crimes, 181 counts of torture. Their story, tragically, is familiar: in a fight against terrorism, the men allegedly kidnapped and held detainees in unknown black sites. They subjected the prisoners to brutal forms of interrogation, such as waterboarding, sensory deprivation and simulated executions. They denied the detainees all legal recourse, and they defended their secret practices as essential to combating an elusive enemy who refused to play by the rules.

But the courtroom is not in the United States, and the defendants are not members of the Bush administration. The defendants - retired officials from Argentina's last dictatorship - are on trial in Buenos Aires, Argentina.

It is the latest in a wave of judicial proceedings in Latin America - in Argentina, in Chile and in Uruguay - for atrocities committed by the brutal dictatorships of the 1970s and '80s, a period during which tens of thousands of citizens were tortured, forcibly disappeared and killed. Hundreds of former military officials have recently been convicted, and many more have been indicted.

It has been more than three months since Attorney General Eric Holder announced his probe into torture under the Bush administration, an investigation which seems to quickly be going nowhere. It is, of course, within a prosecutor's discretion to bring charges, based on the strength of the evidence, the clarity of the legal arguments and the priority of the crimes relative to other work in the office. No doubt, there are a number of difficult political and legal arguments weighing heavily in Holder's decision. He may be inspired, however, by how some Latin countries have proceeded in the face of similar concerns.

One common argument against prosecution is that torture is effective, and we should not prosecute those who helped protect America.

This, however, was the same logic used by Latin America's military governments: they had to wage a "dirty war" on their enemy's terms. No doubt, the danger there was real, as it is in the United States. Leftist groups had killed hundreds before the wave of coups claimed the lives of thousands. But in retrospect, the dirty wars did more damage to the legal order than had the enemy it was fighting. Our southern neighbors have rejected the argument that one may break the law to save the law. They have restored the law by prosecuting those who broke it.

Another argument against prosecution is the supposed impossibility of figuring out who is responsible. Are those at the top, such as former Defense Secretary Donald Rumsfeld or White House counsel John Yoo, responsible? Or should blame fall only on those who carried out the offensive practices?

In Latin America, the answer is both. Argentina's Supreme Court, in the 2005 Simon decision, held that torture is manifestly illegal and that no excuse justifies either giving or following orders to torture. Commander and commanded are equally responsible. Under this theory, a court last year convicted Benjamin Luciano Menendez, one of the most powerful men in Argentina's dictatorship, to life in prison. In addition, another court last year convicted two lower ranking police officers for their involvement in a 1976 massacre.

Finally, some excuse the Bush administration by saying what they did was not torture. Waterboarding is simply an "enhanced interrogation technique," as former Vice President Dick Cheney described it this August while defending the practice.

But this is a lexical sleight of hand. The debate is a nonstarter in Latin America. Though waterboarding is known by another name - the "submarino" - it is decidedly considered torture. Courts have repeatedly convicted defendants for subjecting prisoners to this "method," citing domestic and international prohibitions on the use of the practice. Ironically, our own government, lead by the late Sen. Edward Kennedy, sanctioned Argentina in the late 1970s for using this very practice (amongst other concerns).

The parallels should not be overstated - the scale and scope of the repression was much greater in Latin America. Similarly, it has taken a generation for some countries of Latin America to do justice. Further, not all countries have decided to prosecute torture. Brazil, for instance, still respects an amnesty law passed by the ancien régime in 1979 (though a repeal of the law is currently under debate in Brazil's Congress).

But pointing to these differences suggests that it should be easier for us to do justice. In Latin America, thousands are implicated in the crimes of the 1970s, and hundreds of thousands more who supported military coups share tacit responsibility. In the United States, the ethical lines are more clear. The practices emanated from a small group inside the White House, the vice president's office, the pentagon and the CIA. Ever since the practices saw the light of day, they have been met with boisterous opposition.

For centuries, the democracies of Latin America have looked north for inspiration: how to write their constitutions, how to design their government buildings, how to structure their economies. Perhaps it is time for us to look south.

Sam Ferguson is a Fulbright Scholar and Yale Law School Robina Intetnational Human Rights Fellow living in Buenos Aires, Argentina. He is writing a book, Remnants of a Dirty War, about prosecuting human rights violations in Argentina.